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Military Justice Goes AWOL

THIS week President Bush issued a final executive order authorizing military commissions to begin trying suspected terrorists. Under rules drafted by the Pentagon last month, the commissions would be permitted to sentence defendants to imprisonment or even death on the basis of hearsay or coerced testimony.

This lack of basic legal protections provided by civilian courts or courts-martial has brought condemnation at home and abroad as an abandonment of this nation’s historic commitment to liberty and the rule of law.

Yet when military commissions — an American invention — were first instituted 150 years ago, they were hailed around the world as an advance for humanity and principles of justice.

The occasion was the Mexican-American War, the first time the United States Army had been involved in an extended military operation beyond the country’s borders. In 1846 Gen. Winfield Scott’s forces were ordered to seize Mexico City to bring an end to the fighting. Scott immediately foresaw that, as an occupation commander, he would be facing a huge problem of maintaining order both among the Mexicans in the territory he controlled and among his own troops in a foreign land.

The traditional view of the laws of war held that an occupying army could do anything, the legal maxim being “Inter arma leges silent”: In time of war, the laws are silent. As a result, the phrase “martial law” was widely seen by Americans as synonymous with sheer tyranny. People recoiled at the notion of a military officer administering law over a civilian population, even an enemy population.

In Congress, many members denounced martial law and inter arma leges silent as a holdover of a barbaric past. Scott asked President James K. Polk for a clarification of his authority as occupation commander. The president ducked the issue.

So Scott issued his own order. In February 1847, he published General Orders No. 20, which enumerated ordinary recognized civilian crimes and created the military commission to try them.

Scott’s motive was equal parts necessity (maintaining public order) and shrewd politics (appealing to the Mexican population to cooperate with his forces). In place of arbitrary and raw power and summary justice at gunpoint, a system of impartial courts gave Mexicans the assurance that they would be treated fairly.

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Scott in particular wanted to impress upon the civilians the contrast between American justice and the lawlessness they had endured when the Mexican forces led by Gen. Antonio López de Santa Anna rode through their villages, looting, raping and killing.

By the same token, Scott used military commissions to try — and punish — American soldiers who had committed crimes, including rape and theft, against local citizens. This, too, was not lost on the populace.

General Orders No. 20 became the spark that ignited an international revolution in thinking about martial law. It established for the first time the principle that an occupation commander was subject to a higher legal authority, same as civilian government. It became the model for orders promulgated during the Civil War that established military commissions and guided federal occupation commanders in their administration.

These later orders reiterated the revolutionary principle that martial law did not mean arbitrary power or tyranny over an enemy; rather, as a panel of officers who drafted the key Civil War era order on martial law declared, it was exactly the opposite. Far from signifying military oppression, the panel stated, martial law would be “strictly guided by the principles of justice, honor, and humanity — virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed.”

It is a measure of how far we have come as a nation — and in values at one time widely held — that military commissions, once seen as a great stride forward for American principles of justice and the rule of law, will now for ever after be associated with the abridgement of rights.

And it is a cruel insult to American military honor that where the nation once saw its military as called to an even higher duty in administering justice — because of the special place honor and duty hold for the soldier — it has now turned to the military as a way to shirk the American tradition of “justice, honor and humanity.”

Stephen Budiansky is the author of the forthcoming book “The Bloody Shirt,” about America’s war against terrorist violence during Reconstruction.

A version of this op-ed appears in print on , on Page A15 of the New York edition with the headline: Military Justice Goes AWOL. Today's Paper|Subscribe